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12 Cards in this Set
- Front
- Back
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Definition of Murder |
The law of murder is set out in common law. The legal definition of murder is - 'the unlawful killing of a human being in the Queen's peace, with malice aforethought.' |
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Actus reus of murder |
The actus reus of murder is satisfied where D unlawfully kills another person under the Queen's peace. |
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Necessary circumstances for D to satisfy the actus reus of murder - When does V stop being a person. |
There is no authoritative definition of death within the criminal law, but courts will often refer to medical definitions to assist them. - However, the problem becomes acute where V's body can be kept 'alive' by medical means despite little or even no chance of recovery. V will be considered MEDICALLY dead at the point of 'brain death' - accepted by the HoL in 'Bland'. Where V's condition falls short of brain death, for example a persistent vegetative state - V will not be considered dead and therefore remains a 'person' capable of being murdered. |
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Mens rea of murder |
Coke's definition describes the mens rea of murder as 'malice aforethought' - term still used. - But, it is now clear that D's mens rea need not be malicious: that is, need not demonstrate some manner of evil character. - Also, need not aforethought: as long as D has the mens rea at the moment of action, there is no requirement of pre-planning. D intends to kill or cause GBH where her conduct is carried out in order to bring about a certain result (direct intent) and/ or where her conduct is virtually certain to cause that result, she foresees it as a virtual certainty, and the jury choose to find intention (oblique intention). |
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Mens Rea for murder can be satisfied by an intention to cause GBH |
Important - mens rea satisfied by a greater intention to kill. - For example, an intention to break a major bone or severely wound V would amount to an intention to cause GBH. The jury must then assess that amount of harm, as D subjectively intended, to decide for themselves as reasonable people whether they consider that would be an intention to cause GBH. - Means that murder is a constructive offence. |
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Criticism of the mens rea for murder |
Arises because due to 'intention to cause GBH' - in these cases D does not choose to kill or perhaps even risk killing, and therefore arguably lacks the culpability to deserve liability for murder. |
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Other mens rea requirements |
D can only commit murder if her act or omission causing death was performed voluntarily. Additionally, she must intend or know that what she is killing is a person under the Queen's peace. |
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General Defences (later detail) |
Most of the general defences (so called because of their application across multiple offences) will potentially apply to murder, with the notable exception of duress. - Denials of mental responsibility: D contends that he lacks responsibility for the offence due to some form of mental abnormality, age or intoxication. - General defences of self-defences and necessity: D contends that her actions were justified or should be excused because she lacked a viable choice not to offend. |
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Doctors and the treatment of terminally ill patients |
These cases involve the prescription of pain-relieving drugs to terminally ill patients, where doctors are aware that as a side effect the patient's life expectancy will be reduced. - The doctor completes the actus reus of murder because of her conduct in prescribing drugs in a manner that accelerates the patient's death. - Mens rea, although she is not directly intending to kill or cause GBH because she does not act in order to bring about that result, the shortening of life is a virtually certain consequence and her knowledge of this is likely to amount to an oblique intention to kill. Adams = doctrine of double effect. - Intentionally causing a harmful result (e.g. death) can be morally defensible where it is a side effect of promoting a good end (e.g. pain relief). |
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Partial Defences |
If one of these partial defences is satisfied then D's liability for murder will be downgraded to voluntary manslaughter - still carries maximum life sentence - but at the discretion of the court rather than mandatory sentence. Loss of self-control - D kills while out of control owing to fear of serious violence or by seriously grave circumstances. Diminished responsibility - D's recognised medical condition led to an abnormality of mind and subsequently impaired her capacity, causing her to kill. Suicide pact - D kills V in pursuance of an agreement that they will both die together. *Always consider the complete defences first. |
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Reforming the mandatory life sentence |
in order to abolish the death penalty, the substitution of a mandatory life sentence of imprisonment provided the necessary political compromise. - maintains the idea that as that murder as the ultimate crime should be punished with some comparable level of 'ultimate' punishment. Tariff period - 15 years to a full-life term. Criticism - the law of murder does not target a single specific 'ultimate' wrong but it is, rather, broad enough to catch conduct across wide moral spectrum: from cold-blooded serial killers, to the morally ambiguous mercy killing. -Narrowing the definition of murder -Reforming the partial defences: satisfying a partial defence allows D's liability to be mitigated from murder to manslaughter and thereby avoids the mandatory life sentence. -extenuating circumstances mitigation: exceptional circumstances to allow the mandatory life sentence not to apply for certain murder cases. *Option seems unlikely to gain political traction, as it is perceived as an erosion of the mandatory sentence. |
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Reforming the mens rea of murder |
A) Lord Goff: 1988, recommends reforming the mens rea of murder in a manner that would at once (a) narrow the current law by removing the liability where D intends GBH, as opposed to death, and by narrowing an intention to kill to direct intention only. and also (b) widen it by allowing liability where D is 'wickedly reckless' as to death. -Goff would narrow the law, excluding those who intend to cause GBH chiefly because he believes such defendants are inappropriately labelled as murderers. B) The Law Commission: In 2005 Consultation Paper, set out proposals for a new ladder of homicide offences including; - first degree murder (punished with a mandatory life sentence) - a new offence of second degree murder (punished with a discretionary life sentence) -manslaughter (punished with a discretionary life sentence) *first degree murder and, thereby the mandatory sentence, would only catch those who kill with the intention to kill. |
